IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

JOSHUA L. SMITH, 

Petitioner, CASE NO. 2:10CV00130

JUDGE GEORGE C. SMITH

v. MAGISTRATE JUDGE E.A. PRESTON DEAVERS

MICHAEL SHEETS, WARDEN, 

Respondent.

OPINION AND ORDER

On January 11, 2012, the Magistrate Judge issued a Report and Recommendation

recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be

dismissed. Petitioner has filed objections to the Magistrate Judge’s Report and Recommendation. 

For the reasons that follow, Petitioner’s objections are OVERRULED. The Report and

Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED. 

Petitioner objects to all of the Magistrate Judge’s recommendations. He again raises all of

the same arguments he previously presented. Petitioner objects to the Magistrate Judge’s

recommendation of dismissal of claim three as procedurally defaulted. He asserts that the state

appellate court conducted a merits review of his claim. Alternatively, Petitioner again argues that the

ineffective assistance of trial counsel constitutes cause for this procedural default. Petitioner objects

to the Magistrate Judge’s recommendation of dismissal of that claim on the merits. In support of this

claim, he complains that his attorney subsequently was found to be mentally unable to practice law

and permanently disbarred. On this basis, Petitioner asserts that he has established ineffective

assistance of counsel under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). 

Additionally, Petitioner complains that the Magistrate Judge failed to review the transcripts of his

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motion to suppress hearing or trial. He contends that review of these transcripts will establish he was

in custody at the time he made incriminating statements to police, in violation of Miranda v. Arizona,

384 U.S. 436 (1966). He argues that the trial court’s evidentiary rulings holding his wife was

competent to testify and denying his motion for judgment of acquittal violated due process. Finally,

Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his claim of insufficiency

of the evidence on the merits based on the alleged lack of evidence establishing he acted “purposely”

in causing the death of Michelle Morrison. 

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Upon

consideration of the entire record, and for the reasons already detailed in the Magistrate Judge’s

Report and Recommendation, the Court likewise concludes Petitioner has failed to establish habeas

corpus relief is warranted. The record fails to establish defense counsel acted unreasonably, or that

his performance resulted in prejudice as defined under Strickland. Moreover, and contrary to

Petitioner’s allegation here, the state appellate court explicitly reviewed Petitioner’s claim of

prosecutorial misconduct for plain error only, based on his failure to object. A state court’s plain

error does not revive a claim for habeas corpus review. See e.g., Scott v. Mitchell, 209 F.3d 854, 868

(6th Cir. 2000); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.2000). Similarly, any alternative

ruling on the merits does not revive the claim for habeas corpus review. Harris v. Reed, 489 U.S.

255, 264 n.10 (1989) (“a state court need not fear reaching the merits of a federal claim in an

alternative holding”); Bowling v. Parker, 344 F.3d 487, 498 (6th Cir. 2003) (where state court's

dismissal of claim on merits constitutes an alternative holding, federal habeas court will consider the

claim procedurally defaulted). Additionally, contrary to Petitioner’s argument here, the record fails

to support his claim that he was in custody, as defined under Miranda, such that his statements to

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police were constitutionally impermissible. As to Petitioner’s contention that the evidence was

constitutionally insufficient to sustain his murder conviction, this claim likewise fails. Under §

2901.22, “[a] person acts purposely when it is his specific intention to cause a certain result[.]” The

record reflects that the testimony of Phillip Henry, alone, sufficiently established that Petitioner

purposely caused Michelle Morrison’s death so as to be convicted of murder under Ohio law. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Finally, Petitioner’s state law claims fail to provide

a basis for federal habeas corpus relief. 

 For these reasons and for the reasons detailed in the Magistrate Judge’s Report and

Recommendation, Petitioner’s objections are OVERRULED. The Report and Recommendation is

ADOPTED and AFFIRMED. This action is hereby DISMISSED. 

IT IS SO ORDERED. 

 \s\ George C. Smith 

GEORGE C. SMITH

United States District Judge

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